### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 24, 2001 Sessi

on STATE OF TENNESSEE v. LINNELL RICHMOND

and SHERVON JOHNSON Direct Appeal from the Criminal Court for Knox County Nos. 58152A and 58152B Richard R. Baumgartner, Judge

No. E2000-01499-CCA-R3-CD October 15, 2001

Gary R. Wade, P .J., concu rring.

I co ncur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm i n all res pects. I disagree with Judge Smith that this court should reverse Johnson's aggrava ted robbery and attempted ag

gravated robb

ery convic

tions on a plain

error basis for

failure to instruct on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appea

l. Five factors determine whether the failure to charge lesser included offe nses qualifies as reversible, plain error:
1. The record must c learly esta

blish what happene

d in the trial court

; 2. a clear and une

quivocal rule of l

aw must have been

breached; 3. a substantial rig

ht of the accused

must have been ad

versely af fected; 4. the accused did not waive the issue for tactical reasons; and 5. consideration of the error is necessary to do substantial justice.
State v. Adkisson , 89 S.W.2d 626, 639 (T enn. Crim. App. 1994

). Because the

proof was s o overwhelming as to Johnson's convictions, I would characterize the error as harmless bey ond a reasonable

doubt and cannot, therefore, conclude that considering

the error as pla

in "is necessar

y to do substantial jus tice." Id.
I concur in part wi

th Judge Woodall's

opinion as to the defen dant Richmond, who was granted a new trial on the murder count based upon error in the natural and probable consequences rule. The defendant Richmond should, however, be granted a new

trial on all counts.

I concur with Judge Smith, who concluded that the trial court also erred by the failure to instruct the jury on the lesser included offenses of

robbery and attempted robbery on the aggravated and attempted aggravated robbery indictments.
The evidence showed that the victims were standing outside of a nightclub when four men-2-

wearing masks and hoods came around the corner of the building and demanded that they hand over their money. There was testimony that the defe ndant Johnson held a .9 millimeter p istol to one victim’s head and took $200 from him. There w

as alsoproof that when the other victims related that they had no money, the defendants entered the nightclub and opene d fire. The defendant Richmond was arrested shortly

after the i ncident driving the getaway car. He was not wearing a mask or a toboggan. Poli ce found no we apons and no money in his possession. By proving a ggravated robbery and attempted aggravated robbery , the state also proved robbery and attempted robbery

. See Statev. Bowles , 52 S.W.3d 69 (Tenn. 2001). Under these circumstances, if the defendant Richmond hadbeen convicted of robbery or attempted robbery , this court would have clearly found that the evidence supported the convictions. Thus, these les ser of fenses should have been charged to the jury.
In all criminal cases, the burden of proof is on the state. The defe

ndant had no oblig

ation to prove that deadly

weapons were no

t used in the offen

se. The jury

has the right to

accredit or reject the tes tim ony o f wi tne sse s an d, u lti mat ely, to determine the law and the facts. See Tenn. Const. art. I, § 19. The trial judge has a duty to give a complete charge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the jury as to all of

the law of each o

ffense included

in the indictment,

without any request on the part of the defendant to do so." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute and case law interpre tations , defendants are entitled to jury instructions on all lesser offenses for which the evidence would

support conviction. Complete instructions allow the jury to determine among each alternative the appropriate offense, if any, for conviction and to more even ly balance the rights of the defendant and th

e state. It is o

nly when the

record is devoid

of evidence to support an inference of guilt of the lesser offense that the trial court is relieved of the responsibility to charge the lesser crime. State v. Stephenson , 878 S.W.2d 530, 549-50 (Tenn. 1994); Sta te v . Boyd , 797 S.W.2d 589, 593 (Tenn. 1990).
A finding that the trial court erred by not instructing the jury , however, does not end the inq uir y. In State v. Williams , 977 S. W.2d 101, 105 (Tenn. 1998), our supreme court ap

peared to have rejected a lineof cases which had concluded that the right to instructions on lesser offenses was foundedin the Tennessee Constitution and instead ruled that entitlement was based solely upon the st a tutory requirement. In consequence, the high court directed that a ny error in the omission of a lesser included o

ffense would be s

ubject to the follow

ing harmless er

ror analys is:
Reversal is required if the error affirmatively appears to h ave affected the result of the trial on the merits, or in other words, reversal is required i f the error more probably than not affected the judgment to the defendant’s pre judice.
In State v. Bolden , 979 S.W.2d 587 (Tenn. 1998), the defendant, wh o was charged w ith premeditated

first degree murder, was willing to gamble on an "all or nothing" verdict by asking the trial judge not to charge the lesser included offense of second degree murder; the trial judge refused andthe defendant

was convicted

on that lesser crime. While our supreme court affirmed the second degree murder conviction, its opinion emphasized the man date of the statute

requiring tria

l courts-3-

to "instruct the jur

y on all lesse

r offenses if the evidence intr oduced at trial is l

egally suf ficient to support a conviction of the lesser offense." Id. at 593. Our supreme court also acknowledged that a "purpose of thestatute is to protec t the right to

trial by jury

by instructin

g the jury o

n the elements of all offenses embraced by the indictment [and to] facilitate[] the overall truth-seeking function of the process." Id. If the failur e to charge a l

e ss er included offense was an error of constitutional dimension, as Bolden implied, the proper question would havebeen whether the error was harml

ess beyond a reasonable doubt. In State v. Swindle , 30 S.W.3d 289, 293 (Tenn. 2000), however, our s upreme court followed the rationale in Williams and held that reversal was require d only "if th e error affirmatively

affected the r

esult of the trial,

or if the error more probably than not affected the judgment to the defendant’ s prejudice ." Our highest state court concluded that the trial court’s failure to instruct misdemeanor assault as a lesser included offense of the primary charge, agg

ravated sexual battery, was harmless error under Tennessee Rule of Criminal Procedur e 52(a).
In State v. Ely

, however, our supreme court clarified the holding in Williams and confirmed that the failure to charge a lesser included offense

qualifies as an e

rror of constituti

onal proportions: [T]he right of trial by

jury is of

constitutional dime

nsion [as] evidence

d by its embodiment

in Article I, section 6 of the Tennessee Constitution, which states, "the right of trial byjury shall re main inviolate." A

ccordingly

, we hold that this constitutional right

is violated when the jury is not permitted to consider all offenses supported by the evidence.
48 S.W.3d 710, 727 (Tenn. 2 001) (empha sis in ori ginal). Our h igh court directed that in reviewing error arising from a failure

to charge one or

more lesser included offenses, "the proper inquiry for an appellate court is whet her the error is harmless b eyond a reasonable doubt." Id. That is not, in my view, a mechanically

applied analy

sis, as Judge Smith sug

gests, but a

fact-specific one, requiring review of the evidence in the record. For example, a concurring opinion authored by Chief Justice Rehnquist

in Sullivan v. Louisiana accurately

describes the dut

y of th e ap pellate court in circumstances where there is constitutional error: [T]he revi ewi ng co urt is u sua lly l eft o nly with the r ecord develope

d at trial to determine whethe

r it is possible to say beyond a reasonable doubt that the e rror did notcontribute to the jury's verdict. .

. . [A]ny time an a ppellate court c

onducts harmless-error

review it necessarily engages in some spec ulat ion as to the jury's decision making process; for in the end no judge can know for certain what factors led to the jury's verdict. 508 U.S. 275, 283 (1993) (Rehnquist, J., concurring).
In Fahey v. Connecticut , 375 U.S. 85 (1963), our highest court observed that the real question when there is a constitu

tional violation is

whether there is "a reasonable possibility" that error might have contr ibut ed to t he con victi on. In Chapman v. Califor nia , our Supreme Court

approved of that language and further concluded that when c ons titutional error has occurred, appellate courts have-4-

the obligation "to

declare a belie

f that it was harmle

ss beyond a r

easonable doubt. " 386 U.S. 18, 24 (1967).
In summ ary, I concur in the affirmances of each of Johnson's convictions. In my view, defendant Richmond is entitled to a new trial on all counts. Because there was no direct testimony that he was armed or that he wore a mask, there is a "reasonable p

ossibility" t

hat the failure to instruct on robbery and attempted robbery may have contributed to the aggravated robbery and attemptedaggravated robbery convictions. These err or s cannot be considered harmless beyond a reasonable doubt. I

therefore concur with Judge Smith that the defendant Richmo

nd is entitled to new trials on those convictions.

____________________________________ GARY R. WADE, PRESIDING JUDGE